Gafa v White Prince Pty Ltd

[2013] FCCA 2241

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAFA v WHITE PRINCE PTY LTD [2013] FCCA 2241

Catchwords:
INDUSTRIAL LAW – Fair Work small claims – whether the applicant was entitled to unpaid overtime pay – no appearance by the respondent – applicant entitled to unpaid overtime.

PRACTICE & PROCEDURE – No appearance by the respondent – matter to proceed ex parte.

Applicant: WILLIAM GAFA

Respondent: WHITE PRINCE PTY LTD

File Number: SYG 2967 of 2013

Judgment of: Judge Emmett

Hearing date: 12 December 2013

Date of Last Submission: 12 December 2013

Delivered at: Sydney

Delivered on: 12 December 2013

REPRESENTATION

The applicant appeared in person and had the assistance of Stephen Marriott, solicitor with the office of the Fair Work Ombudsman

No appearance by or on behalf of the respondent.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2967 of 2013

WILLIAM GAFA

Applicant

And

WHITE PRINCE PTY LTD

Respondent

REASONS FOR JUDGMENT

1. This is a claim by the applicant for payment for overtime worked by the applicant while he was employed by the respondent.

2. The applicant seeks to proceed ex parte with the application today. In support, the applicant read the affidavit of Stephen Marriott, affirmed 5 December 2013, being an affidavit of service of all the relevant documents to the proceeding.

3. The affidavit of service states that the relevant documents were posted by prepaid express post on 28 November 2013 to the respondent’s registered office. Attached to Mr Marriott’s affidavit are copies of the express post envelope and the relevant searches done in respect of the company details of the respondent. In the circumstances, the respondent has had two weeks since the date of service in which to participate in the proceeding.

4. There has been no communication received from the respondent by the Court or by the applicant, either seeking an adjournment of today’s hearing or for any other reason. Nor has any response or document been filed by the respondent.

5. I am satisfied that the respondent has been properly served and has had sufficient notice to participate in the proceeding, should he choose to do so.

6. In support of his substantive application, the applicant read his affidavit, affirmed 9 December 2013, in which he deposed that he was employed between 6 April 2010 and 24 April 2012 by the respondent as a full time mushroom packer. The applicant attached a copy of his letter of employment.

7. Clause 16 of the relevant Collective Agreement states as follows:

   “16. Additional Hours

   16.1.The Company may require an employee to work reasonable additional hours from time to time in accordance with the Act.

   Directed Overtime

   16.2 When an employee is directed by the Company to work additional hours, they will be paid the relevant penalty/overtime loading from the Award.

   Voluntary Additional Hours

   16.3. An employee may request to work additional hours at their ordinary hourly rate and the employer agree provided that:

   (a) The request is in writing;

   (b) Additional work is available;

   (c) Any additional hours, in excess of 38 hours per week, performed by the Employee in accordance with this clause will not result in the accrual of leave of any kind; and

   (d) The request may be withdrawn at any time with reasonable notice.”

8. Clause 16 provides for the undertaking of overtime by employees of the respondent either as directed or as voluntary additional hours. In the event that an employee is directed to work overtime, then clause 16.1 of the agreement makes clear that the employee would be paid the relevant penalty overtime loading. In relation to voluntary additional hours, clause 16.3 provides that that an employee may request to work additional hours in writing, at the ordinary hourly rate.

9. The applicant had the assistance of Mr Stephen Marriott, solicitor with the office of the Fair Work Ombudsman, in providing to the Court the relevant documents and the submissions that the applicant wished to make.

10. The applicant’s evidence in relation to overtime is set out in his affidavit from paragraphs 21 to 35 as follows:

    “21. I did not have set finishing times. Production Staff, including me, were not allowed to go home until production as finished and the last order was filled. There was an expectation that the people who were on the production line would stay there until the end. If the machines broke down, or if a big order came through, it was expected that we would stay until production was finished.

    22. If I asked to go home early I would be sent home too early. For example, on one occasion I wanted to go home at 3pm because my son was buying a house. Alden and I hand a conversation to the following effect:

    1 said:  Can I go home at 3pm today? My son is buying a house.

    Alden said:    We’ll see.

    23. Alden sent me home at 12.00pm that day. I was unhappy because I did not want to go home that early.

    24. When I became a Team Leader it became even more necessary that I would stay until production was finished.

    25. The Production Staff were never asked if we wanted to work additional hours. There was a requirement that we would stay until the production as finished. If we did not stay until production as finished then the order would not be filled and I believe that we would have been fired.

    26. I would also be asked by Eddie, another Production Manager, to work additional hours to clean up the factory on occasions when an audit was scheduled. I estimate that I would have worked additional hours for this reason approximately ten per cent of the time. I don’t mind doing these additional hours because Eddie would ask me beforehand if I could work them.

    27. For example, on one occasions [sic] Eddie asked me if I could work additional hours on Anzac Day, which was the following day. We had a conversation to the following effect:

    Eddie said: Can you help clean up tomorrow? We’ve got an audit scheduled in a couple of days and we need to start cleaning.

    I said: Well it’s Anzac Day, let me check with my wife.

    28. I went home and spoke with my wife. I then telephoned Eddie and we had a conversation to the following effect:

    I said: Why don’t I have the morning off tomorrow and then I’ll come in during the afternoon to help clean?

    Eddie said: Okay sounds good.

    29. I was regularly working between 45 and 65 hours per week.

    30. In approximately February 2012 a meeting was held with the Production Staff. At that meeting, another employee, Carl, asked Alden about the long hours. They said words to the following effect:

    Carl said: If we want to go home, then can we?

    Alden said: No, you have to keep working until production is finished.

    31. At the meeting I also raised the hours we were working. Alden and I said words to the following effect.

    I said: I don’t think I can handle working these long hours.

    Alden said: Speak for yourself because other people want to work the longer hours.

    32. After the meeting another employee, I cannot recall whom, and I had a conversation to the following effect:

    The employee said: I don’t want to work those longer hours either.

    I said: Well you had your chance to speak up, why didn’t you?

    The employee said: I was too afraid.

    33. I was not paid overtime rates for any hours that I worked above my ordinary hours averaged over a fortnightly roster cycle.

    34. I worked a total of 5,187/68 hours during my employment with White Prince. A summary of my Bundy card records (which is what I used to clock on and off to record my hours of work), prepared by Fair Work Inspector Samantha Herdegen is annexed and marked WG-3.

    35. I was not paid overtime rates for any of the hours. ”

11. The applicant stated that he regularly worked between 45 and 65 hours a week.

12. The applicant states that when he became a team leader, it was necessary for him to stay until production was finished and that he would have been fired if he had not stayed until production was finished. The applicant also referred to a meeting of employees in February 2012 where the applicant said he told one of the production managers that he could not handle working the long hours required.

13. There is no evidence before this Court of any request made in writing by the applicant to work additional hours.

14. In the circumstances on the evidence before me I draw the inference that the additional hours worked by the applicant over his 38 hour week were at the direction of the respondent. Accordingly, pursuant to clause 16.2 of the Collective Agreement, those hours attracted overtime penalty rates.

15. I further accept on the evidence before me that the applicant worked a total of 5,187.68 hours during his employment with the respondent. On the evidence before me, I also accept that 1,148.86 hours were overtime hours and that the applicant was not paid penalty overtime rates for any of those hours.

16. I further accept on the evidence before me that the applicant was underpaid a total of $11,582.62 in overtime entitlements. Following various deductions that the applicant acknowledged should be made from that figure for his failure to provide notice to the respondent and overpaid termination pay, I accept that the applicant is owed a total of $8,696.01 by the respondent for unpaid overtime.

17. In the circumstances, judgment should be entered for the applicant against the respondent in the sum of $8,696.01.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:  19 December 2013